Journal of Criminal Law and Criminology
Volume 15 | Issue 3
Article 9
1925
State vs Harold Israel
Homer S. Cummings
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Recommended Citation
Homer S. Cummings, State vs Harold Israel, 15 J. Am. Inst. Crim. L. & Criminology 406 (May 1924 to February 1925)
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THE STATE vs. ELROLD ISRAEL
HOMER S. CUMMINGS'
(Foreword by WILLIAM Y.
MIALTBIEO)
The Constitution of Connecticut, adopted in 1818 and since relatively unchanged in its main aspects, bears the impress of the Federalist sentiment then so strong in New England. It originally provided
that the judges of the higher courts should be "appointed by the General Assembly, in such manner as shall by law be prescribed," and
that manner was then and for many years continued to be by concurrent vote of the two houses. In 1880, however, the Constitution was
amended so that the appointment by the General Assembly could only
be made upon nomination of the Governor. The people of the state
have been jealous of any attempt to subordinate its judiciary to the
influence of political factions and the result has been that appointment
to the bench of these courts, while by law only for a term of eight
years, has in effect given a life tenure.
Ever since the adoption of
the Constitution, the state's attorney in each county, who is the prosecuting officer before those courts, has been appointed by them or by
the judges qualified to hold them. Whatever may be the theoretical
soundness of such a governmental system, practically it has been of
the utmost benefit to the state. The method of appointment of the
state's attorneys has made that office one of high honor, and, despite
the small salaries provided by law, the very leaders of the bar have
been willing to assume its onerous duties; so it has removed the office
from the stress of politics and the vagaries of popular feeling and
given opportunity for the untrammeled exercise of independence in
judgment aud action. Wide powers have also been vested in the
state's attorneys, and with them has gone a high feeling of responsibility on their part. The result has been that the people of Connecticut
have become accustomed to look to those who have held that office
with respect and with the expectation of the highest practical idealism
in the performance of their duties. The Honorable Homer S. Cummings, state's attorney for Fairfield County, takes worthy rank among
those who have from time to time held that office.
One of the general powers imposed in the state's attorney is that
which permits him to enter a nolle virtually at his own discretion in
'State's Attorney, Stamford, Conn.
2Judge of the Superior Court, Hartford, Conn;
407
STATE vs. ISRAEL
cases which he feels ought not to be prosecuted., It is not unusual,
however, when a case is of unusual importance or has attracted much
attention for the state's attorney to make a statement to the .court in
explanation of his own action in entering a nolle, or in order to secure
the advice of the court as to the course he ought to take. The following pages contain the statement made to the Superior Court for
Fairfield County by Mr. Cummings in connection with his action in
entering a nolle of a charge of first degree murder. The prosecution
grew out of the murder of Father Dahme in the City of Bridgeport.
Father Dahme was a man well known and influential in Bridgeport,
with many friends and few, if any, known enemies; he was shot down
in cold blood on a street close to the business center of the city in the
evening, when many people were still about, and the nature of the
case was such as. to arouse much comment and feeling in the city.
The accused was charged in the City Court with the murder, and was
bound over to the Superior Court upon a finding of probable cause.
The coroner for the county made his investigation and came to the
conclusion that the accused was guilty, and so reported. Thus the
case came into the field of operation of the state's attorney's office and
the subsequent steps taken are recited by the state's attorney. His
statement is interesting because of the nature of the case; it is valu-"
able because of the methods followed by him in analyzing the evidence,
because of the suggestions it contains for other prosecutors, but more
because of its splendid exemplification of that cardinal principle which
our Code of Ethics states, as follows: "The primary duty of a lawyer
exercising the off ce of public prosecutor is not to convict but to see
that justice is done," and which the state's attorney himself puts in
these words: "It goes without saying that it is just as important for
a state's attorney to use the great powers of his office to protect the
innocent as it is to convict the guilty."
State
Criminal Superior Court,
V.
Fairfield County.
Harold Israel. I-May
HON. L. P. WALDO MARVIN,
27th, 1924.
Judge.
STATEMENT MADE TO THE COURT WITH REFERENCE TO THE ABOvE
ENTITLED CASE By HOMER S. CUMMINGS, STATE'S ATTORNEY
If Your Honor please:
I would like to call to your attention this morning the case of
State v. Harold Israel.
On the 15th day of February, 1924, this accused was bound over
to this court by the City Court of Bridgeport on a charge of murder
408
HOMER S. CUMMINGS
in the first degree, growing out of the death of Rev. Hubert Dahme,
pastor of St. Joseph's R. C. Church of this city.
The facts disclose that on the 4th day of February, during the
evening, Father Dahme, in accordance with his well-established custom, was taking a stroll, and, in the course thereof, passed along the
westerly side of Main street, going in a northerly direction. The
map which is over there to Your Honor's right shows the location.
Main street, as Your Honor will observe, is a long thoroughfare running diagonally to the left through that portion of the city shown on
that map.
Father Dahme was proceeding northerly along this street, and
evidently passed the Stratfield Hotel, passed the corner of Congress
street, and presumably passed the corner of Arch street and reached
the intersection of High street and Main street. The electric lights
were burning as it was dark.
When he reached the southerly side of High street, at its intersection with Main street (the corner I have just pointed out), a man
approached from the rear and, raising his-right hand, placed the muzzle of a revolver close to Father's Dahme's head and fired a fatal shot.
Father Dahme immediately fell to the ground and died without regaining consciousness about an hour later, in St. Vincent's Hospital.
The murder was committed about 7:45 p. m.
The weight of the testimony indicates that immediately upon firing
the fatal shot the assassin turned westerly into High street and, running up the hill, disappeared. In other words, the assassin who had
committed this crime at this corner, which I now point out, ran up
this hill to High street. It is quite an elevation. The upper part of
the street where it joins Washington avenue is very much- above the
level of Main street. It is a constant ascent. There were several eyewitnesses to the shooting, and there were other witnesses who saw a
man fleeing westerly on High street. Indeed there were quite a number to that general effect. None of these witnesses recognized the
assassin. I must say that their descriptions of him vary in certain
particulars. The weight of the testimony indicates, however, that the
slayer was of medium height, comparatively young in years, wore a
gray cap and a dark, three-quarter length overcoat with a velvet collar.
Now, there are some witnesses whose descriptions do not tally with
the description I have just given, but I have followed the description
which most of the witnesses, or the more dependable witnesses, give.
On account of the tragic nature of this murder, the well-frequented spot where it occurred and the prominence of the victim, an
STATE vs. ISRAEL
unusual amount of public interest was aroused, and the police department stirred itself to great activity in an attempt to secure the arrest
and conviction of the perpetrator of this cowardly crime. Witnesses
were discovered who seemed to be of the opinion that a person answering the description of the assassin had been seen walking with Father
Dahme on several occasions, a week or ten days prior to the murder.
Other witnesses were found who saw two men running away from the
scene of the murder in a southerly direction along Main street.
A very excellent witness, a very intelligent young woman, who,
with her mother and brother, was passing along in an automobile
going in a southerly direction on Main street, intending to go to the
Palace Theater. As they got near the junction of High street, they
heard a report which the young man thought was a blow-out or a
back-fire, but which the girl thought was a pistol shot. Anyway, they
did not stop but went right on, going at 15 or 20 miles an hour, to the
Palace Theater. The mother got out and the young lady started immediately and ran back towards the scene of the murder, and when
she reached the Majestic Theater two men running very rapidly and
with all their might were going in a southerly direction and nearly
bowled her over. A calculation of time would indicate that it was
possible that two men running, as described, from the .scene of the
murder at the time the automobile passed, would have been met by the
young lady about opposite that theater. I merely mention that asindicative of some of the puzzling circumstances that have developed
in connection with this case.
Other witnesses were interviewed whose testimony seemed to
indicate the possibility that Father Dahme had been slain as the result
of some grudge or enmity. In fact, Your Honor, a large number of
conflicting and inconclusive facts were assembled. Persons interested
in the administration of justice offered a substantial reward for any
information that might lead to the detection of the criminal.
Now, an autopsy of course was held and disclosed that Father
Dahme came to his death from a gunshot wound in the brain. The
bullet had entered at a point in the lobe of the left ear, passing in the
rear through the cerebellum upward through the cerebrum and stopping on the right side. It did not seem to have been deflected in its
course. Its final lodgment was on the upper right side of the cerebrum
on the periphery thereof. In other words, it had passed inward and
upward.
Assuming that Father Dahme was walking in a normal position
at the time of the shooting, the weapon which caused his death must
41U
HOMER S. CUMMINGS
have been pointed upward at an angle of substantially 40 or 45 degrees. X-ray pictures verify these conclusions. It is not perhaps
worth while at this time to examine this series of X-ray pictures
showing the lodgment of the bullet in the brain of the deceased. These
photographs are taken from different angles, so that one is able, by
studying them somewhat intelligently to gather with reasonable accuracy the general direction taken by the bullet. They also indicate
that a small fragment was detached from the main body of the bullet
and not removed from the head of the deceased. The major portion
of the bullet was, however, removed and recovered, and there seems
to be no doubt that it was a bullet of .32 caliber.
Various ingenious suggestions were made to account for this
tragedy. It was suggested that as Father Dahme was accustomed to
take his evening stroll over substantially the same route every night,
he was probably assassinated by someone familiar with his habits, who
lay in wait for him at the spot where he was killed and made his
escape into the relative darkness of High street. Up to the present
time, however, no satisfactory evidence of any kind or description has
been found which would supply a motive for the assassination.
At the time of the shooting three persons, to wit: Jennie Boynton,
Hilda Baer and Frank Roter, were walking together in an easterly
direction on the southerly side of High street. They heard the fatal
shot and shortly thereafter saw a man running up High street toward
them. He was running in the street, and, as he approached them,
turned to the right and went on to the northerly side.
I will now point out St. Augustine's Church on the map. It is in
plain sight of this court house over the tree tops.
Edward Flood, who came out of St. Augustine's Church at about
7:55 p. in., saw a man running across the junction of Congress street
and. Harrison street, who stumbled upon the curb and continued running in a generally southerly direction down Washington avenue, in
a breathless conditon. This was substantially the situation of the case
up to the time of the arrest of the accused Harold Israel. No suspicion was directed toward Harold Israel until one week after the
shooting.
On Monday night, February llth, or Tuesday morning, February 12th, very early-in other words, about midnight or shortly thereafter-a police officer in Norwalk observed a man acting in a rather
peculiar manner. He ultimately engaged this person in conversation
and took him to the police station. There was found upon his person
a .32 caliber revolver. Four chambers of the revolver were loaded
STATE vs. ISRAEL
411
and the other chamber was entirely empty. This person gave his name
as Harold Israel, said that he had lived in Bridgeport, that he was
on his way to his father's home in Pennsylvania, that he had come
from" Bridgeport Monday evening and was entirely without funds or
a place to sleep. Upon being asked whether he knew anything about
the murder of Father Dahme, he said that he had heard about it and
that his two companions or "buddies" had been near the scene of the
murder at the time it occurred. I will say in passing, by the way, that
this statement turned out to be correct. The accused was sentenced
to jail for carrying concealed weapons, and on February 12th was
sent to the county jail at Bridgeport. He maintained that he knew
nothing as to the cause of the death of Father Dabme.
Thereafter the accused was taken to the station house in Bridgeport to be interrogated. He continued his protestdtions of innocence
and maintained that he knew nothing about the cause of the death of
Father Dahme. He stated in substance that he had previously been
living at 354 Stratford avenue in Bridgeport and that he roomed there
with two friends-Charles Cihal and Nick Cardullo; 354 Stratford
avenue is also shown on the map, Your Honor, right over here (pointing). You have to cross the bridge over the Pequonnock River to
reach that place. It is, however, only a short walk, as you see, from
the center of the city. That is where he said he had been living, and
it turned out to be true that he had been living there. He had been
living there with the two men whom I have just described. It appeared that these three young men had occupied the same room and
that Israel had previously been in the United States army and was at
'one time stationed at Pahama, where he became friendly with Cihal
and Cardullo. They had also had army experience. After his discharge he had by various stages come to Bridgeport to join his friend,
Charles Cihal, with whom he lived until his accumulated earnings had
become exhausted. He had some money at the time, an accumulation
of perhaps $300, and he remained until that was exhausted and then
Cihal continued to stake him to some extent. Later, the pair were
joined by Nick Cardullo and the three continued to occupy the same
room together. This room was located at the address given, above
the Philadelphia Lunch, so-called. In other words, their apartment
was over this restaurant.
Certain of the witnesses heretofore referred to were called in at
the police station and some of them identified the accused as the person
seen running away from the scene of the crime. Knowledge of this
412
HOMER S. CUMMINGS
charge was soon known throughout Bridgeport and a report thereof
was published in the newspapers.
At this point another witness against the accused, Nellie Trafton,
appears in the case. -At the time of the shooting of Father Dahme
Nellie Trafton was a waitress in the Star Restaurant in Bridgeport.
This restaurant is located at the northwest corner of Main and Arch
streets. The murder was committed, as you remember, on the southwest corner of Main street and High street. In other words, the Star
Restaurant was in the same block, and only one block from the scene
of the murder. Miss Trafton had been employed in the Star Restaurant for two or three days prior to the death of Father Dahme. Before that she had been employed in a similar capacity in the Philadelphia Lunch, where she became acquainted with the accused and his
two friends. Your Honor will recall that there was a lunch room
located under the apartment of these three young men. This girl had
previously worked there as a waitress and in that way had seen these
young men and knew them all, although not intimately at that time.
When the arrest of Harold Israel for the murder of Father
Dabme became known, she was heard, while in the Star Restaurant, to
say that she knew Israel and that she thought he was guilty, as she
had seen him pass the restaurant shortly before the murder, and that
upon a previous occasion, when she was at the Philadelphia Lunch, he
had exhibited a revolver to her and had said that he was going to kill
somebody with it. A customer in the restaurant, overhearing het
conversation, telephoned police headquarters and an officer was sent
down to request her attendance at police headquarters, where §he re
lated her story and identified Israel as the- person she saw pass the
restaurant on the night in question.
Harold Israel up to this time had maintained his innocence. He
was informed and knew of the identifications which had been made,
and he was subjected to questioning by various members of the Bridgeport Police Department. There is no evidence that he was subjected
to any physical violence or any form of torture or inquisition commonly associated with what is known as "The Third Degree." He
was, however, subjected to prolonged and vigorous interrogation, continuing for hours at a time. This process was continued at intervals
from about noon on February 13th to 4 p. m. on February 14th, during which Israel made sundry conflicting statements, finally .admitting
that he had killed Father Dahme on the night in question in the way
described and that he had fled over the course which the escaping
STATE vs. ISRAEL
assassin was supposed to have taken.
to writing and signed by Israel.
413
This confession was reduced
When asked where the fatal cartridge could be found, he informed the police that it could be found in the toilet-room in the place
where he had previously boarded. An examination of the place in
question by the police resulted in the discovery of a discharged cartridge, and it was assumed that this cartridge was the one that was
used in the killing of Father Dahme.
Thereafter, during the evening, he was taken in an automobile
over the course of his supposed flight, and it is claimed by the officers
that he pointed out the course he had taken and the place which he
saw the man and the two women on High street and the corner of
Congress avenue and Harrison street where he stumbled. The following morning he was arraigned in the City Court of Bridgeport
and bound over to this court, as heretofore stated.
Subsequently thereto the police department got in touch with
Charles J. Van Amburgh, formerly an engineer in the ballistic department of the Remington Arms Company. Prior to that, he had had
army experience, was an instructor in markmanship and ordnance
work, and was familiar with firearms and the manufacture of various
forms thereof. He has removed to Boston and is connected with the
state police departmeit there. He was shown the revolver which had
been taken from the person of the accused and the bullet which had
been fired through the Israel revolver. After making certain experiments he reached the conclusion that the fatal bullet had been fired
through the Israel revolver. Subsequently thereto the coroner conducted an investigation and the facts which I have heretofore outlined,
*together with many other facts of a less important character, were
brought to the attention of that official. Under the circumstances,
there was no alternative open for Coroner Phelan except to make the
finding which he did, holding the accused for the murder of Father
Dahme.
This coroner's report was submitted on the 25th day of February,
1924. Summarizing the case against Israel, the coroner very logically
divided the case into ten points, which in substance are as follows:
First-Israel was seen by an acquaintance, Nellie Trafton, within
a block of the place of the shooting from five to ten minutes before
the shooting.
Second-The slayer wore a gray cap and a brown overcoat, the
latter having a black velvet collar.
414
HOMER S. CUMMINGS
Third-The witnesses, Frederick W. Morris and Ralph E,posito, saw a man wearing a gray cap and overcoat shoot the deceased and run westerly up High street.
Fourth-Jennie Boynton and Hilda Baer, eastbound on High
street, heard the fatal shot and saw the fleeing slayer cross High street
about one hundred feet west of Main street, wearing a gray cap and
brown overcoat, Hilda Baer noting the velvet collar.
Fifth-Edward Flood saw a man apparently exhausted, wearing
a gray cap and dark overcoat, running at the junction of Washington
avenue and Congress street and Harrison street ten minutes after the
shooting, and observed him when he stubbed his toe at the curbing,
but continued his journey westerly on Washington avenue.
Sixth-The witnesses, Esposito, Boynton, Baer and Flood, identified Israel at police headquarters as the person they had thus seen
fleeing from the scene of the shooting.
Seventh-Israel made a statement in writing admitting the crime.
Eighth-Israel, accompanied by' members of the police department, went over the course of his flight and designated the various
spots above referred to.
Ninth-Israel informed the police where the empty shell of the
fatal bullet was placed by him in his room, where it was subsequently
found by the police.
Tenth-The revolver found on Israel was a .32 caliber of Spanish
manufacture, and it was the gun from which the bullet found in the
head of the deceased was discharged.
'The functions of the City Court and of the coroner having been
discharged in due course, the matter naturally came under the jurisdiction of the state's attorney's office for action. The case against the
accused seemed overwhelming. Upon its face, at least, it seemed like
a well-nigh perfect case, affording but very little difficulty in the matter
of successful prosecution. In fact, if Your Honor please, it seemed
like an "annihilating" case. There did not seem to be a vestige of
reason for suspecting for a moment that the accused was innocent.
The evidence had been described by those who believed in the guilt of
the accused as "100 per cent perfect."
Despite these facts, however, there were many people who, without any particular assignable reason, felt that the accused was innocent and that he had been the victim of a most extraordinary combination of circumstances. Unfortunately some considerable feeling seems
to have developed which has rendered the task of the state's attorney's
office all the more difficult.
STATE us. ISRAEL
My own view necessarily was that if the facts above stated were
subject to verification, the accused was undoubtedly guilty, but there
were sufficient circumnstances of an unusual character involved to make
it highly important that every fact should be scrutinized with the
utmost care and in the most impartial manner. It goes without saying
that it is just as important for a state's attorney to use the great powers of his office to protect the innocent as it is to convict the guilty.
From the time that the murder was committed the state's attorney's office has been following the development of events with deep
interest. For a long time my very able and conscientious assistant,
Mr. Garlick, has been studying the matter and conducting inquiries
along lines suggested either by him or by myself. More recently I
have taken upon myself the burden of this case. I have endeavored
to approach it without any preconceived notion and for the purpose of
arriving at a conclusion which should be in accord with the high purposes to which I hope the state's attorney's office is devoted.
In the study of this case I have not spared myself. I have interviewed personally every person of consequence who had anything to
say for or against the accused. I have studied the great mass of
testimony which has been accumulated, thousands of pages. This is
only a part of it which you see here upon the desk. I have made a
careful scrutiny of all of the exhibits. I have interviewed the accused
himself and have interrogated him in the presence of Mr. Deforest,
the public defender, who has been representing him and who is in
court at this present moment. In addition to this, I have had the
benefit of the advice of several reputable physicians and I have studied
the ballistic aspects of the case to the best of my ability with the
assistance of gentlemen who are skilled in matters of this kind.
I have personally interrogated all of the key witnesses and I have
personally gone over the scene of the crime and the supposed course
of flight of the murderer, and I placed myself in the position of the
witnesses who identified the escaping criminal under conditions as
nearly as possible like those which existed on the night in question.
It has been a long, tedious and exacting experience, but I have reached
certain definite conclusions which, with Your Honor's permission, I
shall now proceed to develop.
On Friday, the 15th of February, when Harold Israel was bound
over from the City Court of Bridgeport, he was interrogated at length
by Mr. Garlick. He was examined by three physicians-Dr. John H.
Finnegan, Dr. Frank W. Stevens and Dr. John C. Lynch, designated
by the state's attorney's office for that purpose. They also questioned
HOMER S. CUMMINGS
him. They have united in a written report to the effect that on the
day in question the accused was in a highly nervous condition, physically and mentally exhausted, and was incapable of making a dependable statement on said day or on the previous day, Thursday, the 14th.
His answers- are extremely interesting. I have a stenographic report
of all these proceedings. He both admitted and denied the crime.
The physicians also reported that on February 18th, that is, three days
later, and after physical and mental rest, the accused was competent
to confer with a representative of the state's attorney's office and with
his own counsel and with physicians. Up to that time it was their
judgment that he was totally incapable of rendering a coherent, dependable statement.
When in this somewhat restored condition the accused was interrogated. He denied his guilt and reasserted his innocence, and has
maintained his innocence ever since. When asked why he had confessed, he said, in substance, that it was because he was so tired that
he was willing to admit anything in order to get a rest and because
everything was against him. In subsequent conferences with the
physicians in question and with Dr. George Garlick I ascertained that
it was their unanimous opinion that the accused was a person of low
mentality, of the moron type, quiet and docile in demeanor, totally
lacking in any characteristics of brutality or viciousness, of very weak'
will and peculiarly subject to the influence of suggestion. It was the
opinion of the physicians that any confession made by the accused
was totally without value, and they were of the opinion also that if
they cared to subject the accused to a continuous and fatiguing line of
interrogation, accusation and suggestion in due course he would be
reduced to such a mental state that he would admit practically anything that his interrogators desired. They further stated that this was
a common phenomenon with certain types of people, and that where
such people are subjected to interrogatories, accusations or suggestions
from persons of stronger will, the lesser mind will ultimately succumb
and accept the conclusions of the more powerful intellect. Whether
or not this particular situation existed in the present case, I was not
entirely prepared to accept, even upon the statement of the physicians.
I have carefully read, however, all of the statements made by the
accused, which may be summarized as follows:
First-His preliminary statements, in which he denied his guilt.
Second-His subsequent statements, in which he admitted his
guilt.
Third-His final statements, in which he reasserted his innocence.
STATE vs. ISRAEL
417
I do not find in all of this evidence any fact or statement on the
part of the accused, made by him voluntarily, of an incriminating
character which added any information or supplied any fact that was
missing from the state's case. To put it another way, all of the admissions of an incriminating character were admissions with reference
to facts already known to the police prior to the examination of the
accused and presumably related to the accused during the period of
his examination.
This is a tremendously important factor in weighing the conclusion of the physicians and deciding the question of whether or not
the so-called confession is of any probative value. I think the conclusion is inevitable that the so-called confession is without value, and.
if any attempt were made to use it before a jury it could easily be
rendered nugatory when attacked by competent counsel. Why, Your
Honor could see practically how such a thing would operate. If I
were trying the case and desired to put in this confession for the purpose of incriminating the accused, all the defense would have to do
to shatter this confession would be to call theqe physicians, and in a
moment the confession would disappear from the case as not having
any probative value.
The conclusions which I have reached with regard to the confession are likewise applicable to that set of facds which are in reality
part thereof and which deal with the circumstances of the trip taken
by the accused in the company of the officers over the route of the
supposed flight of the slayer. I thus eliminate and lay aside from the
case Points 7 and 8 in the coroner's summarization.
Now, if Your Honor please, perhaps at this point, and as illustrative of the manner in which "appearances are deceitful," I call
attention to the ninth point in the coroner's summary. This point,
Your Honor will recall, deals with the finding of the empty shell in
the toilet room where the accused lived. It was supposed to be an
important circumstance that when asked where the fatal shell was
(and this was during the period of this intensive interrogation), the
accused told the officers where it could be found, and they subsequently found it at the place he designated. The coroner founds one
of his essential points upon this situation. Great discredit is placed
upon the significance of this incident by the experience of the landlady
in charge of the room in question. After the police had found the
supposed fatal cartridge the landlady herself found another cartridge,
also empty, at substantially the same location. It appears that the
accused and his companions occasionally used the pistol in shooting
HOMER S. CUMMINGS
practice in the woods and carelessly threw down the empty shells
wherever they chanced to be and sometimes threw them in the toiletroom. More conclusive, however, if Your Honor please, than this
fact is the further fact that the examination of the empty shells found
as above described (that is, these two empty shells) discloses that they
were exploded by a trigger point which was relatively dull, whereas
the trigger point on the weapon found in the possession of the accused
was comparatively sharp. Test shots fired with the Israel revolver
indicate clearly upon the percussion cap the character of the impact
of the trigger. Inquiry discloses that two weeks prior to the murder
Charles Cihal, the friend of the accused, and at the request of the
latter, took the revolver to the carpenter shop where he was employed
and caused the trigger point to be sharpened, thinking that it would
thus operate more effectively. It is thus clear that the supposed fatal
cartridge, which it was assumed had been the cause of the death of
Father Dahme, had actually been exploded long before the crime was
committed. An experience of this kind accentuates the necessity of
scrupulous care in the 'weighing of circumstances of this type.
Thus we are forced to eliminate from the state's case the ninth
point, so-called.
We now turn to the testimony of Frederick W. Morris and Ralph
Esposito, referred to in the third point of the coroner's summary. Mr.
Morris is a man of undoubted probity. He witnessed the murder.
He stood within six feet or thereabouts of Father Dahme at the time
of the shooting. He was, in fact, of all the witnesses the nearest eyewitness to tl'e scene of the crime. He speaks of seeing a little fellow
back of a big fellow and describes vividly the shooting of Father
Dahme. He did not, however, see the revolver in the hands of the
slayer, and, curiously enough, he is of the impression that the slayer.
and his victim stepped around the corner from High street. In other
words, the man of all others of undoubted character who stood nearest
to the scene of the crime, within six feet of it, saw or thought he saw
the slayer and the accused come around the corner of High street into
Main street. Now, I haven't the least doubt in the world that Mr.
Morris is telling the thing exactly as he remembers it, or is giving
accurately the impression which it created upon his mind, but this runs
counter to the testimony of other witnesses, and, I am free to say, it
runs counter to the probabilities of the case. I merely mention it for
the purpose of showing how easy it is for reputable eyewitnesses to
describe the same transaction in varying forms. This witness saw the
slayer flee up High street and says that he wore an overcoat and a
STATE vs. ISRAEL
419
cap. Although he was nearer to the assassin than any other witness,
he was unable to give a more definite description and was unable to
identify the accused after he had been placed under arrest.
The other witness, Ralph Esposito, is a young man who was
standing near the scene of the crime and saw the deed perpetrated.
He was some little distance away- 2 0 or 30 feet. He states that he
did not get a good look at the face of the slayer. He says that the
assassin wore a dark cap and a dark coat, whereas practically all of
the other witnesses say that the accused wore a gray cap. These are
some of the discrepancies in the description of the slayer to which I
referred a little earlier in my statement to Your Honor. As a matter
of fact, the cap of the accused is neither gray nor dark. It is of a
slightly greenish or olive tinge. (The cap worn by Israel is exhibited
to the court.) This is the cap, Your Honor. It would hardly be
called gray and hardly would be called dark. That is the cap of
Israel. The witnesses say that the escaping criminal wore'a gray cap.
The witness Esposito also makes a rather remarkable and possibly significant statement. He says that he thinks that the revolver
was "one of those black pistols," and adds that "it did not shine," and
I am quoting his exact words as he testified before the coroner. Now,
it sb happens that the Israel revolver is nickel-plated, and under electric lights, had it been used, it is quite likely it would have glittered.
It is rather remarkable that one of the witnesses upon whom the state
would have to depend in the event of a trial says that it was "one of
those black pistols." (The Israel revolver is exhibited to the court.)
That, if Your Honor please, is a nickel-plated revolver and is the
revolver that was found on the person of the accused when he was
arrested in Norwalk and is the revolver that, in the event of a trial,
the state would be forced to claim was the revolver that was used in
killing Father Dabme. It is very likely that a revolver of that type
used under the electric light would have glittered, but even that might
have passed the observation of the witness, but when the witness voluntarily states that it was a black revolver, "one of those dark colored
revolvers," and when you remember that Esposito would be one of
the witnesses that the state would have to primarily depend upon, it
presents a very interesting situation which would in itself prove quite
enibarrassing to the state in the event of a trial.
The witness Esposito, when asked to identify the accused, rather
hesitatingly did so, but he identified him from his back and his overcoat and not from his face. He also attempted to strengthen his identification by describing the manner in which the slayer ran up the
HOMER S. CUMMINGS
street, saying it was sort of a "Jewish run." This was his shorthand
description of the appeararice of the slayer as he disappeared into the
darkness. The police accommodated the witness and caused Israel to
run around in the police station so that this witness might observe
him and see whether he had a "Jewish run" or not. No comment is
necessary to justify the assertion that an identification based upon this
ground is without value. I therefore am forced to lay out of the case
the third point in the summary.
Let me now take up the fourth point in the coroner's summary.
This point, Your Honor will recall, deals with the testimony of Jennie
Boynton and Hilda Baer. These two women were proceeding down
the hill on High street going toward Main street at the time of the
firing of the fatal shot. They heard the shot fired. They were, at that
time, on the south side of the street near the church, which is some
considerable distance from the corner. This is quite interesting, Your
Honor. These two ladies, in company with Mr. Roter, were coming
down High street, coming down hill on the southerly or right-hand
side. When they reached the church, which is near there, and I should
say, estimating, perhaps one hundred yards from the cormer, they saw
a man running up High street toward them. One of these women
said the man was running in the center of the street and that as he
approached within a measurable distance he sheered off to the right
across the street to the northerly side. She saw only the side of his
face, estimating the distance practically the width of the street, and
then he disappeared in the darkness.
Now, Frank Roter, who was with these two ladies, is totally
unable to identify the accused as the person then seen running.
Jennie Boynton asserts that the assassin wore an old stiff overcoat which looked like a German overcoat. She was struck by the
pallor of the accused, but saw only the side of his face. When firsf
taken to the police station to attempt to identify the accused, she stated
that she could not do so, and returned to her home without making
any identification. She returned the next day, however, and identified
the accused. Her explanation is that when she first saw him at the
police station she recognized him but was so nervous that she feared
her nerves were "playing her a trick" and she did not feel justified in
identifying him. She "worried about it" in the night, so she told the
coroner. In the meantime, however,, it was published in the paper
that Israel had confessed. This seemed to dissolve her doubts and
she returned and made the necessary identification. Even so, her testimony is of dubious value because she uses such phrases as this: "I
STATE vs. ISRAEL
421
haven't much doubt about it," "He looks like the same man," "Yes, I
am pretty sure it is the same person."
The witness Hilda Baer is a niece of Jennie Boynton. She speaks
through an interpreter and she did not identify the accused in the police station, nor does my survey of the notes submitted to me indicate
that she made any identification until she appeared before the coroner.
There are circumstances in connection with this identification which
would cause me to hesitate to accept it. She speaks of the accused as
having a long nose, as if this were the most striking thing about him.
There is nothing abnormal about the nose of the accused. Moreover,
at the time the coroner's hearing was held, the picture of Israel had
been published repeatedly in the local newspapers. Some of the papers
carried a very excellent picture of him.
I turn to a more important consideration with reference to the
testimony of these two witnesses. I myself made repeated experiments at the place where these two witnesses are supposed to have
seen the fleeing assassin. I have no doubt that they did see the fleeing
assassin, but I am perfectly satisfied that it was utterly impossible for
either of these witnesses to identify the assassin under the conditions
that existed at that time. I personally was unable to distinguish the
features of a person I knew well at such a distance and under the
given circumstances. I could not even tell a friend of mine within the
distance that these ladies say they identify a stranger whom they saw
running. And it passes all credulity that witnesses, seeing a running
person they had never seen before, for a fleeting moment, could in that
dim light carry an impression which would enable them to identify that
person a matter of nearly two weeks thereafter. I have no hesitancy
whatsoever therefore in placing out of the case the identification of
Jennie Boynton and Hilda Baer as set forth in the fourth point.
This brings me to the fifth point, dealing with the testimony of
Edward Flood, who saw a man about 7:55 p. m. on the night in question fleeing across Congress street toward Harrison street. The witness came out of St. Augustine's Church and has excellent reason for
fixing the time of the occurrence. He saw that the person was pale
and colorless and describes his momentary stumble at the curb.
He describes the person as wearing an overcoat with a velvet collar, and in his testimony before the coroner adds that the fleeing
person wore a cap. In his preliminary statements he did not seem to
remember about the cap. His memory has apparently been strengthened between the time when he identified the accused at the police
station, and the time when he testified before the coroner. We find
422
him describing the fleeing person as
and seeming to be "in deep trouble."
up and down Congress street and up
see whether there was any trolley car
have been trying to catch.
HOMER S. CUMMINGS
having "furrows in his brow"
The witness also tells of looking
and down Pequonnock street to
which the running person might
There is a tinge of the imaginative about the testimony which leads
me to doubt its probative force. Moreover, I personally experimented
at the corner in question, not only with an assistant who went through
the motions supposed to have been gone through by the fleeing person,
but I waited for passers-by to come along to see whether I could sufficiently fix their features in my mind so as to permit me to identify
them subsequently. There is an electric light about fifty or sixty
feet from the place in question. The fleeing person must have run
diagonally so that this light did not fall fully upon his face. If the
person were running, the range of vision within which it would
be possible to distinguish his features would be the length of time that
it would take him to cross a distance of say ten or twelve feet. In
other words, a witness would have to fix the features of the accused
in his mind within a period of three or four seconds, and all this in a
dim light. I confess that I am shocked when I think that any person
would, in a case of this character, assert a positive identification based
upon such circumstances and taking place two weeks thereafter with
reference to a person the witness had never seen before.
I have no hesitancy in asserting that I could not, upon my conscience, ask any trial court or jury to place credence upon an identification of this character. I, therefore, lay the fifth point out of the case.
And now, Your Honor, let me call attention to an incident which
actually happened subsequent to the arrest of this accused and while
he was in jail. During the February term of court, immediately following the murder, there was a large attendance of persons apparently
drawn here by the possibility that the Israel case would come up for
consideration. We formed a practice of looking into the crowd of
spectators with a view to see how many people who sat on the benches
resembled Harold Israel, and many interesting and illuminating experiences were gathered in that way. On one day, for instance, the
sheriff picked out seven people, and another person, after a conference
with the state's attorney, picked out eight people. Seven of the eight
were identical, that is, they picked out the same people all as resembling
the accused.
Then another very interesting thing happened.
I saw in the
court room here one day a man strikingly like the description of
STATE vs. ISRAEL
423
Harold Israel, so we sent for him and brought him into the state's
attorney's office. He was interrogated as to the reason for his presence in the court room. He showed signs of extreme terror, distress
and anxiety. He nearly fell on the floor and collapsed when asked
why he was in the court room. He could not give any reason, but
finally admitted he was there on account of the Israel case, and exhibited symptoms which, under ordinary circumstances, would cast
grave suspicion upon him. Then we looked on the table where he
placed his coat and cap, and l and behold, there was a gray cap and
there was a coat, a three-quarter length dark coat, and there was a
velvet collar on that coat. At this time Harold Israel was in jail.
That actually happened, and it shows how easy it is for similarities
in appearance, and especially similarity in clothes, to be made the basis
for a mistaken identification.
I now turn to the first point in the coroner's summary, which is
the testimony of Nellie Trafton. This testimony would seem to be
the most important testimony, against the accused so far as identification is concerned. This witness had the advantage of knowing the
accused for some time prior to the murder. The presumption is that
if she saw him again she would recognize him because she" would see
him not as a stranger, but as a person she had previously known. As
you will recall, she worked in the Star Restaurant, located a block
from the scene of the crime. Her duties momentarily brought her to
the front of the store to use the cash register. She looked at the clock
which is located near there and fixed the tim& as about 7:35 p. m.
She remembers this because she had an appointment at 8 o'clock. As
she approached the cash register she glanced out of the window to the
sidewalk on Main street, and there, passing in a leisurely manner, was
the accused. The accused waved his hand to her and she waved her
hand in reply, and he passed on out of her sight, going in the direction
of the scene of the crime. All this occurred a matter of ten minutes
before the murder.
Standing by itself this testimony would, of course, be of no importance, as-Nellie Trafton did not see the shooting and there is nothing necessarily from her testimony which connects the accused with
the crime. However, it is important in this respect, namely: The
accused claims that he was nowhere near the scene of the crime at the
time it happened. In fact, he states he was in a moving picture house
known as the Empire Theater at the time in question, that he had gone
to this theater about 7 o'clock and that he left the theater shortly after
9 o'clock. If his story is correct, he could not have been at the scene
424
HOMER S. CUMMINGS
of the crime. If the story of Nellie Trafton is to be relied upon, his
statement of his movements is false and, therefore, suspicion is cast
upon him because of the falsity of these statements.
It will be remembered also that Nellie Trafton, when she was
working at the Philadelphia Lunch, saw the pistol which she says was
exhibited to her at one time by Charles Cihal and at another time
by the accused, the latter saying that some day he would kill somebody
with it. In weighing the testimony of Nellie Trafton, we must remember that she made no complaint to the police and, in fact, made
no statement to the police about it until after this particular individual,
Harold Israel, had been arrested. It will also be recalled, for what it
is worth, that there was a substantial reward offered for any testimony
that might lead to the conviction of the assassin, and I must say, in
passing, that this particular witness, through an attorney, has made
application for the reward.
It is quite likely that the accused did show Nellie Trafton the
pistol in question. It is probable that he-made the remark referred to.
It will be remembered that he had been in the army and that a revolver was not a remarkable object to him. Although Nellie Trafton
admits that she thought he was joking at the time, it is very possible
that the incident made some impression upon her. In fact, she says
that when Father Dahme was killed, she thought that perhaps Israel
had done it.
I thought, therefore, that it was important to ascertain what real
opportunity Nellie Trafton had to identify the accused if he passed the
restaurant as she described. I have done a good deal of strolling, Your
Honor will observe, about the streets of Bridgeport lately. I therefore
went to the Star Restaurant, and I created somewhat of a sensation
there I will admit. I placed myself as nearly as I could in the position that she must have occupied at the time. I then found, somewhat
to my surprise, that it was very difficult to distinguish any person passing on the sidewalk. The reason is this: Inside the window there is a
glass partition separated from the front window by a distance of perhaps a couple of feet. This space between the two windows is evidently used as a place to exhibit fruit and other things sold in the
restaurant. On the window there are printed letters, and between the
two windows there is a bright light. At the present time this light is
very vivid when it is turned on in the night season. After interrogation
of the woman who runs the restaurant, I learned what kind of lights
vere in the window at the time of the murder. These lights were not
so bright as the lights which are there now. I tried it both ways and
STATE vs. ISRAEL
425
also without any lights at all, and while it is possible to see persons
passing in the street and, by looking intently, to note their features, it
is very difficult to do so on account of the distortion caused by the
double windows, and I am satisfied that any identification made under
such circumstances is of little value. I not only made the experiment,
but the assistant state's attorney, Mr. Garlick, who was with me at the
time, made similar experiments and he reached the same conclusion
that I did. I thought, therefore, it was desirable to interrogate Miss
Trafton, and I talked with her at some considerable length. I found
that she was by no means certain of her ground. Moreover, she admitted that there was nothing strange in the fact that a man passing
on the sidewalk had waved to her or even that she had waved back to
him. This sometimes happened even in the case of total strangers.
With a measurably good-looking girl, approaching the window, some
gay stranger passing by might very easily wave his hand to her, and,
if she were of a flirtatious disposition, she might respond.
After eliminating from the case, by the necessities of logic, the
other identifications, this solitary dubious identification, standing by
itself, is totally worthless. Moreover, there are at least ten other eyewitnesses who had equal opportunities for identifying the assassin and
who do not identify Israel as the slayer of Father Dahme. Point 1
is therefore dismissed from further consideration.
That eliminates from this case, Your Honor, every point set forth
in the summarization made by the coroner except the tenth point, and
this, I may say, is the crucial point in the case. The tenth point in
the coroner's summary deals with the testimony of the ballistic engineer, Mr. Van Amburgh. It will be remenbered that this witness
states that in his opinion the fatal bullet was fired through the Israel
revolver. If this opinion is well founded, then Israel is guilty, no
matter what we may think of the character of the other evidence to
which I have already referred. If, on the other hand, the testimony
of this witness is not reliable and if it should appear that the mortal
bullet was discharged through some weapon other than the Israel revolver, then Israel is innocent.
This brings us to a general consideration of that class of expert
testimony which deals with the identification of a bullet with a particular weapon where both are available for experimentation. In this case
we have the Israel revolver and we have the mortal bullet. (Bullet is
shown to the court.) Of late years there has grown up a system of
examination in such cases which is based upon scientific theories, supplemented by actual experimentation. It has come to be a very def-
HOMER S. CUMMINGS
inite science. Men qualify themselves by experience in dealing with
such matters. -Sometimes it is described as the science of "finger
printing bullets." Of course, it is obvious any bullet discharged
through a particular weapon will bear the marks of the weapon
through which it has passed, and if the bullet be recovered and is in
sufficiently good condition to be examined, it will often bear unmistakable traces of its previous history. Ordinarily, in such cases, witnesses measure the width of what are known as the "lands" and
"grooves" on the bullet. They then make a cast of a portion of the
barrel of the suspected weapon and make duplicate measurements.
They then discharge experimental shots through the suspected weapon
and recover the bullets thus fired. These bullets are usually fired into
soft substances like cotton. The recovered bullets are then measured
in the same manner and compared by means of the microscope and
enlarged photographs with the suspected bullet. In addition to this,
the experimental bullet is inspected for characteristic marks. If any
are found, these are measured and located. The suspected bullet is
then examined for similar marks. Consideration is given to the number and dimensions of lands and grooves, to the direction or twist of
the rifling in the barrel and the caliber of the bullet. Consideration
is given as to whether the bullet is upset on impact or otherwise disturbed. The weight of the bullet is considered and the question of
the presence or absence of what is known as a grease groove.
These characteristics are searched for. Sometimes one element is
missing and others are found to exist. The condition of any bullet
under examination is sometimes such that many of these marks of
identification are destroyed. It so happens, however, that in a majority
of cases where the fatal bullet is recovered and the suspected weapon
is available, it is possible for experts to say definitely whether the
bullet came out of the suspected weapon or not.
In this case I have sought the advice of the most experienced
men who were available. I have had the benefit of the opinion of the
following:
(a) Thomas A. Campbell. of New Haven, a graduate of Yale
University, who had experience with the Winchester Repeating Arms
Company., Inc., and has been connected with the Remington Arms
Company, Inc., for five years as metallurgist.
(b) Egbert C. Hadley of Bridgeport, who received his education
and obtained his degrees in various institutions of learning, including
the Harvard Graduate School of Arts and Sciences and the Massachusetts Institute of Technology. He was employed in the mechanical
STATE vs. ISRAEL
427
laboratory in the New York Navy Yard and became connected with
the Remington Arms Company, Inc., in November, 1915. Since
August, 1916, he has been connected with the ballistic department,
having to do with the technical side of the manufacture of ammunition. In July, 1919, he was appointed ballistic engineer, and is at present ballistic engineer of the U. M. C. Bridgeport works of the Remington Arms Company.
(c) George H. Garrison of Bridgeport, who has had many years
of experience in connection with the manufacture and sale of guns
and ammunition. He has been connected with the Remington Arms
Company since 1904 in various capacities. In 1918 he became quality
engineer of the Remington Arms Company and has designed and patented guns, gun devices and improvements in firearms and ammunition.
(d) Merton A. Robinson of New Haven, Conn. He entered the
employ of the Winchester Operating Arms Company in 1904 and was
employed in the ballistic laboratory. In 1911 he was appointed head
of the laboratory, a position which he retained until 1917, when he was
transferred to the Central Engineering Division and given the title of
ballistic engineer. It has been his duty as head of the laboratory and
as ballistic engineer to supervise all routine and experimental tests of
guns and ammunition and to specify standards as to powders, priming
mixtures, bullet composition, gun chamber sizes, twists of rifling and
the proper co-ordination of dimensions between gun and ammunition.
'During a long period of years it has been his practice in connection
with his work to fire and recover various types of bullets from various
arms and examine the recovered bullets with the aid of microscopes.
In August, 1918, he was appointed by the United States Ordnance Department as a member of a commission to visit the principal small arms
ammunition plants in England, France and Italy to study methods of
manufacture and to observe and to determine the quality of ammunition being furnished to the American troops.
(e)
J. A. Dickerman of Bridgeport. He is a graduate of the
Cornell University of Engineering and has had a wide experience in
designing and building various kinds of machinery. In 1916 he became connected with the Remington Arms Company, Inc. He has
had charge of all experimental work in connection with tools and
processes and war contracts. He was a member of a committee sent
-abroad to investigate European methods of manufacture. At the close
of the war he became process engineer, and has had a wide experience
in connection with -shells, primers and bullets of all sizes and kinds and
secured several patents in connection therewith.
428
HOMER S. CUMMINGS
(f) William A. Jones of New York. He was a member of the
Police Department of the City of New York from 1887 to 1919. He
was in charge of the school of pistol practice from 1895 to 1911. In
1908 he was assigned to the Homicide Bureau to investigate all shooting cases. In connection with this experience he visited the scene of
many crimes and attended autopsies, worked with detectives on cases
and testified as firearms expert in many trials. He has had a wide
experience with different kinds of arms and cartridges and powders
used in loading them. He has qualified as firearms expert in trials
conducted in eleven different counties in New York State, and in trials
in Maine, Connecticut, New Jersey, Pennsylvania, Virginia, West Virginia, North Carolina, Washington State and Washington, D. C., and
Canada. He has been firearms expert for the Police Department and
the district attorneys of the five counties in New York City for the past
twenty years. During his experience he has actually given testimony
in probably a thousand cases or more.
Now, all .of these gentlemen are men of undoubted character and
of wide experience and reputation. They are frequently consulted in
similar cases and they are peculiarly well qualified to give advice in
the pending matter. They were chosen to aid the state's attorney's
office after careful investigation of their qualifications.
These gentlemen have carefully examined the mortal bullet. They
have examined the Israel revolver. They have conducted sundry experiments. They have carefully compared the recovered bullets with the
mortal bullet. They have examined the photographs of all the bullets thus
used as well as the mortal bullet, and they have examined the experimental bullets fired by Capt. Van Amburgh. They have carefully considered his findings and they have examined the matter at great length
and with the most painstaking care. Now, this has been a rather difficult matter for me to follow, Your Honor, but I have followed these
discussions and the line of reasoning to the best of my ability. Apparently the contention made by Capt. Van Amburgh rests upon three
propositions:
(A) He calls attention to the cups or depressions in the base of
the mortal bullet as compared with similar depressions in the base of
test bullets fired through the Israel revolver. Idiscussed this point at
length -with him and he frankly states that it is of very minor significance and without probative value. In other words, we talked
about the point for half an hour, perhaps longer, and at the end of it
he said it was a matter of no importance. Now, as a matter of fact,
the other experts told me that similar appearances are produced by
STATE VS. ISRAEL
many different kinds of bullets, and the matter is of no importance
whatsoever.
(B) Measurements made of markings on the mortal bullet as compared with markings on the test bullets. It is his contention that it is
_Dossible to detect certain similarities in this respect. He does not, however, place much weight upon his assertions in this respect, preferring
to rest his proposition upon his third and last point.
(C) This point deals with comparisons made between a photograph of the fatal bullet and a photograph made of a recovered bullet
fired through the Israel revolver. By superimposing these photographs, he asserts that he is able to trace certain lines of similarity.
It is upon this that he' rests his w'hole case.
Here is an"illustration, Your Honor. This is the photograph made
under the direction of Captain Van Amburgh. The mortal bullet, that
little bullet that was here on your desk, magnified many times, is this
one. This is a photograph of a bullet which was fired through this
revolver which you also see on your desk. Now the question is whether
in any respect these two photographs thus many times enlarged disclose any resemblances to each other with reference to tracing of lines
or marks which appear upon the surface.
In order to develop his argument, he first, with a sharp knife, cut
a slit in this photograph. He inserts through that slit the strip picture
of the recovered bullet, and, pushing this up and down, finally reaches
a place where he says the lines coincide.
Well, I worked at that for two hours one day, and yesterday, in
the presence of Captain Van Amburgh, worked on it for more than an
hour. It took Captain Van Amburgh 15 minutes to find the point of
junction himself-well, say five minutes, it will be more conservative.
It is only with great difficulty that he, himself, is able to place these
photographs in a position that is satisfactory to him.
Then a peculiar thing developed. I called his attention to it, and
he had absolutely, so far as I could see, no answer to it. I asked him
to put the photographs in the position which he claimed demonstrated
his point, and he got them to that position. Then I said, "Now, lift up
the flap and look and see what is under it," and I thought somewhat
reluctantly the flap was lifted and on the under picture we saw a scene
totally different from that which we saw on the upper picture. I asked
him whether it was not perfectly logical to assume that if the two pictures had been superimposed-that is, if the other picture was transparent and placed over the other-that there ought not to be a continuous similarity in the surface appearances. He admitted that that
HOMER S. CUMMINGS
was logical, and I never could get a satisfactory explanation for the
discrepancy.
I am free to say that I am unable to make any such deduction.
I examined these photographs with extreme care and, in my judgment,
they do not bear out his contention. I examined them in his presence,
and with the aid of every suggestion he was able to give. It seemed
obvious to me that instead of demonstrating that the mortal bullet had
been fired through the Israel revolver, it demonstrated that the mortal
bullet had not been fired through the Israel gun. These photographs
were submitted to the six gentlemen whom I consulted and whose
names I have just mentioned, and their conclusions were that these
photographs, if of any value whatsoever, proved the incorrectness of
the Van Amburgh contention.
They are not only of the opinion that there is no evidence that the
mortal bullet came out of the Israel revolver, but they are clearly of
the opinion that the mortal bullet came out of some other unknown
weapon. I have in my records a written opinion signed by all six
of these gentlemen, relating to the general character of their tests, the
conclusions which they have reached and the reasons for these conclusions.
Briefly stated, the primary ground upon which their opinion rests
is that the mortal bullet came out of a weapon in reasonably good condition. There is upon the mortal bullet well-defined evidence of a land
and grooves. By way of explanation, let me say that the land is the
elevated portion of the rifling on the inside of the barrel. The groove
is the space between. As a bullet passes through such a barrel, the
lands and grooves make marks upon the bullet, the land, of course,
making a depressed place on the bullet and the groove an elevated
space.
Let me direct Your Honor's attention to the photographs made
under the direction of the experts whom the state's attorney's office
employed. These were largely magnified photographs of the mortal
bullet. Here is another photograph of it and that is the supposed
mortal cartridge which has the firing pin point I have mentioned. I
don't care to refer to that except for the two large pictures. This is a
picture of the mortal bullet. This is a picture of a bullet fired through
the Israel gun. This is another one fired through the Israel gun. This
is a .32 caliber bullet fired through a Smith & Wesson gun, and this is
a bullet'fired through a modern gun, and this is a picture of the cast
made. These are similar pictures.
Now, Your Honor can see easily with your own eyes without the
STATE vs. ISRAEL
431
aid of a microscope this indentation here, this indentation here and
this indentation here, indicating the presence of what are known to be
land and grooves. You can see that with the naked eye and you can
see it in this small picture. If you turn to the pictures of bullets fired
through the Israel revolver, there are no such marks. If you turn
to the bullets fired through any other gun of modern make, you see
these marks. It is perfectly obvious by mere scrutiny.
As I have just stated, the mortal bullet in this case shows clear
evidence of such marking. All of the experimental bullets fired
through the Israel revolver are without trace of any comparable land
marks or grooves. The reason is this: The Israel revolver is in a
bad state of repair and for a substantial distance midway in the barrel
it is encrusted with rust and other accumulations, which have perceptibly choked the bore of the revolver. The result is that a bullet
which will pass through the opening midway in the barrel will rattle
loosely when inserted at either end of the barrel. The experimental
bullets demonstrated this fact beyond questioti. A bullet fired through
the Israel revolver will begin to rotate when it strikes the first rifling
of the barrel. It then comes to the choked portion of the bore, and, in
order to go through, it is squeezed and elongated. Practically all of
the marks made by the initial rifling are eliminated and the elongated
bullet emerges from the muzzle without bearing the marks of the rifling
at that end of the barrel. From looking at the weapon, the experts
could say that they would not expect a bullet fired through this weapon
to bear any perceptible mark of lands or grooves, and as a matter of
fact the experimental bullets fired through the Israel revolver do not
bear any such perceptible marks. The marks on the mortal bullet,
however, as above stated, clearly disclose the presence of a land and
grooves. This in itself is sufficient to demonstrate that the mortal
bullet did not pass through the Israel revolver.
There is, however, another bit of important and corroborative evidence. The mortal bullet does not show any evidence of a grease
groove. A grease groove (perhaps Your Honor knows, but I had to
learn) is a circular depression near the base of the bullet and in that
part thereof which is inserted in the cartridge shell and in which grease
is placed so that when the bullet is fired there will be a minimum
of friction as it passes out of the shell and through the barrel of the
weapon. If a weapon is in good enough condition to clearly mark on a
bullet discharged through it the evidence of land and grooves it would
retain the impression of the grease groove if the bullet originally had a
grease groove. In the present case, the mortal bullet is without any
432
HOMER S. CUMMINGS
evidence of a grease groove, and there is no reason to believe that it
ever had a grease groove. On the other hand, all the Israel and identical bullets fired through the Israel revolver for experimental purposes
show the evidence of a grease groove. That also fortunately is visible
to the naked eye. Your Honor will see those parallel lines. This is
very clear and here is the place. There is none on this bullet. All
the experts agreed that there is none. Taking a bullet and firing it
through the Israel revolver as these were fired, it shows the evidences
of a grease groove. That is uncontroverted. Now, we have a situation where the bullets fired through the Israel revolver contain grease
grooves and the mortal bullet did not have a grease groove.
Moreover, Your Honor, I was not quite satisfied with that and I
asked them to take some of the bullets that were found in the possession of Israel and open them to see whether the grease groove was in
those bullets, and that actual experiment disclosed the presence of a
grease groove. Moreover, all the Israel cartridges in the possession of
the state undoubtedly contain grease grooves, not only because of
their known make, but because several of them were opened for the
purpose of ascertaining whether this was the fact or not. It is thus
apparent that the mortal bullet had no grease groove, whereas the
Israel bullets did have grease grooves.
These circumstances amount to a demonstration that the bullet
which killed Father Dahme did not pass through the Israel revolver.
There are other matters of a lesser nature which might be commented upon. For instance, the Israel revolver frequently misses fire.
This failure to function is accentuated when the revolver is held at the
angle at which the murderer probably held his weapon. You take this
revolver here to shoot it off, and you will find that it misses fire more
than 50 per cent of the time. Sometimes the chamber or cylinder
doesn't revolve, and the reason it misses fire is because of the malalignment between the trigger point and the firing pin. We took the
weapon, elevated it to this elevation indicated by the course of the
bullet through the brain of Father Dahme, actually tried it and it
missed fire eighteen times in succession.
After conferring at length with all of the ballistic engineers and
* having compared their opinions, I have no hesitancy in accepting the
conclusions reached by the six gentlemen to whom I have referred. Of
course, the acceptance of that conclusion marks an end to the case. In
the face of such an opinion it would be preposterous to contemplate a
trial, and, moreover, it would be an injustice even to longer suspect
Israel of murder.
STATE vs. ISRAEL
433
Of course, I could have rested my entire conclusion upon the opinion of the six ballistic engineers to whom I have referred, and I would
have been entirely justified in so doing. In other words, if there were
nothing in behalf of the defense except the testimony of these six
men, it would create a reasonable doubt of the guilt of the accused.
In fact, I regard it as the turning point of the case; but on account of
the other remarkable circumstances which I have analyzed at length
heretofore, I thought it best to consider them because, unless I did so,
many persons would desire to know how these apparently incriminating facts could be reconciled with a conclusion of innocence.
There are many other circumstances which sustain the conclusion
that Israel is not guilty. I do not pause to dwell upon them all. There
is one, however, I would like to draw to the attention of the court.
During the course of his statement to Mr. Garlick the accused was
interrogated as to his movements on the night of the murder. In the
course of this statement he said he had been at the Empire Theater,
which he had entered shortly after 7 o'clock and where he remained
until about 9 o'clock. He was asked what pictures were being shown
at the time. He named, four pictures, as follows: "The Fighting
Skipper," "The Mystery Girl," "The Leather Pushers" and the
"Ghost of the Dungeon." It is scarcely conceivable that he had any
premonition that this question was to be asked of him or any opportunity to prepare his answer. Furthermore, he was .asked what picture was being presented at the time he entered the Empire Theater.
He replied that "The Leather Pushers" was being shown and that he
saw the last part of it and that he remained in the theater until "The
Leather Pushers" was shown again, and thus remained until he had
seen that full number.
Subsequently Mr. Garlick obtained from the manager of the theater a statement of what the facts were with regard to the presentation
of the program of the evening in question, with the approximate time
when each picture was shown, which disclosed the following situation,
and I may say that we are informed that the actual variation in time
would not exceed two minutes either way. "The Leather Pushers"
began at 6:50 p. m. and terminated at 7:10 p. m. "The Mystery Girl"
was the next number, continuing until 8:10 p. m., a full hour. There
was then an intermission of about five minutes. The next number
was "The Fighting Skipper," which continued until 8:37 p. m. The
next number was "The Ghost of the Canyon" (not Dungeon), continuing until 8:57 p. m. The next number was "The Leather Pushers,"
terminating at 9:17 p. m. This schedule exactly checks up with the
HOMER S. CUMMINGS
story of Israel's movements that evening as related by him. It is obvious that if he was in the Empire Theater on the evening in question
and saw the last half of "The Leather Pushers" when it was first
presented and the remaining part of it when it was next presented, he
saw the full program and was in the theater at the time the murder
was committed. Your Honor will recall the murder was committed
at 7:45 p. m. At that moment, if he was in the theater, he was witnessing the performance of "The Mystery Girl."
In view of what I have said about every element of the case, I do
not think that any doubt of Israel's innocence can remain in the mind
of a candid person.
Israel was bound over not only on the charge of murder, for
which he has been awaiting trial, but he was sentenced by the City
Court of Norwalk to thirty days in jail and costs for carrying a concealed weapon. This latter sentence will have been fully served and'
the costs worked out by June 5th. In these circumstances it is my
intention to enter a nolle in the pending case forthwith. So that, while
Israel has been held for murder, he has been serving time on a sentence properly imposed and has not suffered, any imprisonment during
the period given over to the examination of the facts in this case. In
other words, his sentence under the City Court with costs imposed has
been running parallel to the period during which this case has been
under investigation. Therefore, if Your Honor approves, as I -trust
you will, of my conclusions in this matter, I shall enter a nolle in the
case of State v. Harold Israel.
THE COURT:
The court has given very close attention to the
state's attorney and followed the presentation of the case as closely as
it could. It is perfectly evident that a great deal of painstaking care
has been expended on this case and that the attitude of the state's
attorney's office has been what it always should be, one of impartiality
and a desire to shield the innocent as well as a determination to prosecute those who are guilty.
The court cannot help but feel that after the care that has been
expended by those who are well qualified and the careful and exhaustive review of the case and the statements that are made, that the
recommendation of the state's attorney is one that should be approved
and carried out.
I feel that the state's attorney's office is entirely justified in the
recommendation that has been made, and it is so ordered.*
MR. CUMMINGS:
I thank your Honor.